[00:00:00] Speaker 05: overseeing action for lumber versus United States. [00:00:04] Speaker 05: Mr. Leonard, why are counsel for the same side dividing the argument? [00:00:12] Speaker 05: I'm not sure that our rules permit that. [00:00:16] Speaker 04: As I understand the rules permit to counsel, excuse me, from different firms to represent or to present arguments. [00:00:25] Speaker 04: Excuse me. [00:00:29] Speaker 04: uh... uh... we don't have the rules in front of us so why don't you go ahead but there's only going to be one rebuttal correct that's all we're seeking uh... i'm here with uh... edley bow of hainz boone who reserved one minute and we'd like to reserve four minutes for rebuttal we represent or we're arguing on behalf of three government parties with institutional interests and expedited reviews [00:00:58] Speaker 04: and seven private parties that demonstrated in expedited reviews that they were not subsidized and should be excluded from the countervailing duty order on softwood lumber from Canada. [00:01:09] Speaker 04: This case is about how Congress expressly incorporated parts of the statement of administrative action by reference into the Uruguay Round Agreements Act and authorized Congress, or excuse me, Commerce, in Section 103 to issue regulations implementing expedited reviews. [00:01:27] Speaker 04: The relevant language of the SAA is on page 28 and 29 of our opening brief. [00:01:33] Speaker 04: And the relevant text of section 103A and B are on the bottom half of page 24 of our opening brief. [00:01:41] Speaker 05: Where's the relevant part of the SAA quote? [00:01:45] Speaker 04: The relevant part is on page 28 and 29 of our opening brief. [00:01:53] Speaker 05: Expedited reviews arose... I would have thought that the relevant part of the SAA was subsection G about implementing regulations. [00:02:06] Speaker 04: Of the SAA, it's section B5, which talks about expedited reviews. [00:02:13] Speaker 04: It's actually titled... Are you familiar with G? [00:02:18] Speaker 04: I don't have it presently in my mind. [00:02:19] Speaker 04: I could have my colleague pull it up and look at it for me. [00:02:23] Speaker 05: What it says is the administrator will endeavor to amend or issue the regulations required to implement U.S. [00:02:30] Speaker 05: obligations under the UAE ground agreements as soon as practical. [00:02:35] Speaker 05: Section 103A of the bill provides the authority for such new or amended regulations to be issued. [00:02:43] Speaker 05: Why doesn't that tell us something that's relevant? [00:02:47] Speaker 04: It does tell us something irrelevant. [00:02:50] Speaker 04: Similar to... It seems like the language in best foods. [00:02:55] Speaker 04: Exactly. [00:02:55] Speaker 04: In best foods, the implementing legislation for the NAFTA provided authority to issue regulations, and this court found that in that case, the NAFTA Implementing Act talked about some statutory changes that were required, but also anticipated that [00:03:13] Speaker 04: that some provisions would be implemented through regulation only. [00:03:18] Speaker 04: And the same is the case here. [00:03:20] Speaker 06: Can I just ask, I was not able entirely to tell, but it didn't look to me like in Best Foods, or whatever the earlier name of the company was, actually ever disputed the [00:03:34] Speaker 06: authority under the 3311 in that case, or 3313, the counterpart of the one here, that that was even a disputed issue in the court. [00:03:51] Speaker 04: that that that section provided authority to issue regulations and i don't remember seeing an argument from best foods that it didn't that it uh... that that authority wasn't missing because that's not a proper interpretation of the equivalent of our one oh three a uh... best foods are you that uh... uh... because the map implementation act didn't include statutory changes allowing uh... a change in the country of origin methodology that [00:04:21] Speaker 04: the agency couldn't do it by regulation, similar to the arguments here. [00:04:26] Speaker 06: I'm not sure that that's similar to the arguments here. [00:04:29] Speaker 06: Did anybody say when you read 103A, you can't properly incorporate something contemplated in the SAA as providing authorization for a new regulation? [00:04:46] Speaker 04: I believe that's what the coalition is arguing, but I'll let them [00:04:50] Speaker 04: I'm getting a little bit confused. [00:04:53] Speaker 05: I thought in best foods that the language that authorized the issuance of regulations to comply with international obligations wasn't actually part of the statute. [00:05:05] Speaker 05: It wasn't just in the SAA. [00:05:08] Speaker 05: Am I correct about that? [00:05:10] Speaker 04: Yes, in that the Implementation Act provided authority to issue regulations, but it's actually the [00:05:17] Speaker 04: country of origin methodology language was an annex three eleven of the master and wasn't specifically referenced in the implementation actor anywhere in the statutes here uh... but the [00:05:31] Speaker 05: But the idea of authorizing regulations to bring the United States into compliance with international obligations was something that was specifically in the statute, whereas here it seems to be only in the SAA and not in the statutory language itself. [00:05:48] Speaker 05: Now maybe you say we should interpret 103A in accordance with the SAA to permit that, but it does seem to me somewhat different. [00:05:57] Speaker 04: Well, there are two parts of 103. [00:06:00] Speaker 04: A talks about regulations that are necessary to implement the URAA, and 103B specifically references the SAA. [00:06:10] Speaker 05: 103B... B doesn't do much for me. [00:06:14] Speaker 05: I mean, I think if you're going to find it, it's got to be in A. [00:06:19] Speaker 06: Well, in terms of A, we read that... I'm sorry, if only because whatever the SAA did, it did not in fact propose this as a measure that it was going to take where it was proposing other things for the reasons the CID set. [00:06:34] Speaker 06: That's a hurdle for you. [00:06:35] Speaker 04: Respectfully, we disagree with the CIT. [00:06:37] Speaker 04: In the SAA, we're looking at Section B5. [00:06:42] Speaker 04: And Section B states, or is titled, action required or appropriate to implement the agreement. [00:06:50] Speaker 06: Can you give a page number, please? [00:06:52] Speaker 04: Sure. [00:06:52] Speaker 04: That's in our brief. [00:06:55] Speaker 06: Do you actually have the SAA page number? [00:06:57] Speaker 04: I have the 1994 U scan. [00:06:59] Speaker 04: It's at 4237. [00:07:02] Speaker 04: Or its page, my colleague will... So this is, while he's looking up the page in the brief, this section B then has subsection B5, which is company specific subsidy rates and expedited reviews. [00:07:33] Speaker 04: And this is the first part, company specific, subsidy rates. [00:07:37] Speaker 04: refers to the change from the pre-URAA country-wide rates, which were investigated on an aggregate basis country-wide and a country-wide rate was provided. [00:07:48] Speaker 04: The URA shifted that preference to company-specific rates. [00:07:54] Speaker 05: Section B5... Okay, but let's put aside 103B for the moment. [00:08:01] Speaker 05: Let's just talk about 103A. [00:08:04] Speaker 05: The portion of the SAA that I read seems to say 103A provides the authority to issue regulations to bring the United States in compliance with international obligations. [00:08:19] Speaker 05: But even if that tells us how to construe 103A, it doesn't tell us whether the provision of the treaty that you're relying on, in fact, [00:08:34] Speaker 05: requires these individually, not individually, investigated entities to get this expedited review when they're not new shippers. [00:08:46] Speaker 04: Well, 103A, read in conjunction with 101 and 102. [00:08:50] Speaker 05: I'm sorry. [00:08:51] Speaker 05: The question I'm asking you is not about 103. [00:08:54] Speaker 05: The question I'm asking you is how do we know that your construction of the treaty is correct? [00:09:01] Speaker 04: This is the Department of Commerce's interpretation of the treaty, which goes back to... There was no shift from deference to treaty interpretation, right? [00:09:09] Speaker 04: It goes back to, if we look at the preamble, the 1997 preamble to the regulations, there the Department of Commerce talks about implementing 19.3 with expedited review regulations [00:09:25] Speaker 04: And then specifically contrast that with new shipper reviews, which are on the anti-dumping side in Article, I believe it's 9.5 of the anti-dumping agreement. [00:09:36] Speaker 04: And the Senate report as well, when we look at the legislative history of the URA, the Senate report talks about how 19.3 is expedited reviews and requires a change in the Department of Commerce practice. [00:09:51] Speaker 04: So there are, in addition to the SAA, which talks specifically about expedited reviews, and if I'm understanding the question correctly, the question is, where does it talk specifically about expedited reviews as opposed to new ship reviews? [00:10:07] Speaker 05: The question is, you're interpreting 19.3 of the treaty. [00:10:13] Speaker 05: as providing for individual examination after the fact, even for entities that are not new shippers, correct? [00:10:27] Speaker 05: Correct. [00:10:28] Speaker 05: And the question is, what supports that interpretation of the treaty? [00:10:34] Speaker 04: Well, if we're looking at the treaty, I would point to the contrast between 19.3 and the anti-dumping agreement, which has new ship reviews. [00:10:42] Speaker 04: And if we look at the statutory framework as well that was implemented under the act, under the anti-dumping statutes, there are provisions for new ship reviews. [00:10:52] Speaker 04: I believe this is 1675. [00:10:54] Speaker 04: It's actually with reviews. [00:10:56] Speaker 04: And there's a specific statutory framework for new ship reviews. [00:11:03] Speaker 04: The companies that are eligible for a new shipper review are distinct from those that are eligible for an expedited review. [00:11:10] Speaker 04: Because a new shipper has to be someone that did not export to the United States during the period of investigation. [00:11:16] Speaker 05: An expedited review... Well, it's true that the regulations distinguish between those two. [00:11:24] Speaker 05: I'm just saying, how do we know that the treaty is correctly interpreted to be referring to individuals [00:11:33] Speaker 04: uh... well in the essay which is the authoritative interpretation of the treaties the language in b five and uh... this is uh... it's nine twenty three of the uh... of the uh... uh... essay uh... is is section b nine forty one is b five uh... but there it talks about uh... or provides for uh... expert review [00:12:00] Speaker 04: shippers or firms that were not investigated for reasons other than not cooperating. [00:12:10] Speaker 04: A new shipper could never have been investigated at all because it didn't ship during the period of investigation. [00:12:16] Speaker 04: Only an exporter that shipped during the period of investigation could have been investigated. [00:12:23] Speaker 04: So there's, in terms of the language of 19.3, that is pretty similar. [00:12:28] Speaker 05: It could be an entity that failed to cooperate. [00:12:30] Speaker 04: It couldn't be an entity. [00:12:32] Speaker 04: Well, a new shipper couldn't. [00:12:34] Speaker 04: Excuse me, a new shipper is someone that didn't. [00:12:36] Speaker 05: A new shipper couldn't be an entity that failed to be warranted in the original investigation. [00:12:40] Speaker 04: Correct. [00:12:40] Speaker 04: And it couldn't be investigated either because a new shipper hasn't shipped or doesn't ship during the period of investigation. [00:12:50] Speaker 04: Do you want to save the rest of your time? [00:12:54] Speaker 03: I'd like to ask a question. [00:12:56] Speaker 03: I'm surprised that in your responses to Judge Dike, you don't say anything with respect to the agreement of subsidies and countermeasuring measures that was also explicitly incorporated by Congress, and there they do speak about an expedited review. [00:13:13] Speaker 04: Yes, that's in 19.3. [00:13:16] Speaker 04: Article 101 of the URA specifically approves the substance agreements as well. [00:13:22] Speaker 04: So it's not only the SAA that's approved, but also the SCM agreement. [00:13:32] Speaker 05: So Mr. LaValle has one minute here. [00:13:39] Speaker 00: Thank you for letting us speak, your honor. [00:13:42] Speaker 00: May it please the court. [00:13:42] Speaker 00: My name is Ed Liebow and I'm here on behalf of several of the small lumber mills that have used the expedited review process in this investigation, which the trade bar refers to as SL5. [00:13:55] Speaker 00: And that number is important and significant because it's in that context of longevity that I want to emphasize just one point, and that's regarding congressional acquiescence. [00:14:04] Speaker 00: Softwood lumber cases have been going on for many decades. [00:14:08] Speaker 00: And as our briefs and as Mr. Leonard have noted, there have been exclusion provisions in place, both under the old and current law. [00:14:15] Speaker 00: And as the Supreme court stated in the Bob Jones University case, it's hardly conceivable that Congress was not abundantly aware of all this. [00:14:22] Speaker 06: I want to try to interrupt you. [00:14:23] Speaker 06: So could you, after reading the federal register notice of the launch of this investigation, have sought to participate [00:14:37] Speaker 06: in the investigation and gotten all this taken care of before the January 3rd, 2018 order? [00:14:46] Speaker 00: That's a good question, Your Honor, because it points out specifically the change in the overall law, which the expedited review provision is part of. [00:14:54] Speaker 06: What about an answer to the question? [00:14:56] Speaker 00: The answer is no. [00:14:57] Speaker 00: Because, or theoretically, yes, but the Commerce Department chooses the four largest companies [00:15:05] Speaker 00: uh... that are exporting in order to do the company specific countervailing duty rates then they take the weighted average they call it created all other great commerce refused to allow other people to be individually investigated when they made such a question i cannot say that you're right i don't think anyone even made the request because it was so contrary to typical commerce policy at the time [00:15:27] Speaker 00: which everyone is aware of, that under the new law, they do company-specific rates. [00:15:33] Speaker 00: And then the expedited review procedure is a way for the smaller companies that weren't subsidized to get their own rates after the main investigation is completed. [00:15:43] Speaker 00: Whereas under the old law, they did sort of a national rate and had a provision for exclusion as part of the initial investigation. [00:15:52] Speaker 00: You had to file a request with 30 days of initiation under the old law. [00:15:55] Speaker 00: But the new law specifically provided the provision and... I'm sorry, by new law you mean new regulations. [00:16:02] Speaker 06: Yes, under the new regulations pursuant to... Which is the issue, right? [00:16:06] Speaker 06: The entire issue here is that you had a regulation creating domestic law out of something it understood to be an international obligation. [00:16:19] Speaker 06: without Congress having specifically said on this specific subject, we want this to be domestic law. [00:16:27] Speaker 00: Correct, Your Honor. [00:16:28] Speaker 00: But the way the fast-track process works is that Congress has to vote up or down on an entire package, which includes the statement of administrative action and the legislation. [00:16:41] Speaker 00: And historically, and in this case as well, there are some changes to match the international obligation, which are done [00:16:49] Speaker 00: by legislation or by a specific statute, and some are by regulation. [00:16:54] Speaker 00: That's what we were pointing to with our agreement at Best Foods was. [00:16:57] Speaker 03: The SSA is viewed as a statute. [00:17:01] Speaker 03: I mean, it's got the force of law. [00:17:04] Speaker 00: Yes, I don't want to take that statement too far. [00:17:06] Speaker 00: I'd like to be able to agree with you completely. [00:17:08] Speaker 00: But it's a kind of a hybrid. [00:17:10] Speaker 00: But it's incorporated by reference in the Uruguay Act and 102 [00:17:16] Speaker 00: D and 101A2 as being the expression of Congress's interest and understanding of how the international agreement works. [00:17:30] Speaker 00: And the international agreement required for expedited reviews, which in the context of individual company [00:17:37] Speaker 00: uh... rates had to be company specific uh... expedited reviews but what about the agreement of sub-citizens can only measures how to what extent is that incorporated and what's the its effect as as force of law sure uh... the s e m is listed as precisely in the uh... essay as one of the international agreements which is being incorporated [00:18:04] Speaker 00: by reference and the U.S. [00:18:06] Speaker 00: obligation under the SEM is precisely what we're talking about here in order to keep U.S. [00:18:12] Speaker 00: law consistent with international law and with our international obligations under Charming.C and otherwise. [00:18:20] Speaker 05: Okay. [00:18:20] Speaker 05: Thank you. [00:18:20] Speaker 05: Thank you, George. [00:18:22] Speaker 05: Mr. Leonard, we'll give you two minutes for a bottle. [00:18:27] Speaker 01: Good morning. [00:18:28] Speaker 01: My name is Sophia Lin. [00:18:29] Speaker 01: I'm here on behalf of the coalition, and I'm from the law firm Picard-Kinson Row. [00:18:34] Speaker 01: May I please the court? [00:18:35] Speaker 05: Do we know why Commerce hasn't appeared in this case? [00:18:41] Speaker 01: I believe that it might be because Commerce thinks that they have a very weak case. [00:18:46] Speaker 01: That's why they didn't appear. [00:18:47] Speaker 01: Did they say that? [00:18:49] Speaker 01: Sorry? [00:18:49] Speaker 05: Did they say that? [00:18:50] Speaker 01: They did not say that. [00:18:52] Speaker 01: But that's what I choose to believe. [00:18:56] Speaker 01: Regardless of whether Congress is here, we believe that the statute is unambiguous. [00:19:01] Speaker 01: And when the statute is unambiguous, that Congress did not intend to have an expanded review as described in Congress's regulation. [00:19:08] Speaker 05: How about the subsection G of the SAA that I read to your friend on the other side, which seems to be saying that we can have regulations that will implement international obligations. [00:19:25] Speaker 05: And did they find that in 103A? [00:19:26] Speaker 01: Right, correct. [00:19:29] Speaker 01: So the essay is not law. [00:19:32] Speaker 01: It has not been passed by, it has not gone through the legal process to become... Let's reserve that question for a moment. [00:19:39] Speaker 01: Okay. [00:19:39] Speaker 05: Reading the essay, isn't my statement of what the essay says correct? [00:19:46] Speaker 01: The essay, so I don't have it in front of me for that particular provision, but I think that the fact that the essay says that means that Congress is prepared to, that's what Congress did in approving international agreements, that they are prepared to implement what Congress perceived to be the international obligations in US law. [00:20:11] Speaker 01: And what Congress perceived to be the international obligation does not include CVD X-ray review as described by Congress. [00:20:18] Speaker 05: The report I read doesn't make any reference to the statute. [00:20:21] Speaker 05: It says the administration will endeavor to amend or issue the regulations required to implement U.S. [00:20:26] Speaker 05: obligations. [00:20:28] Speaker 05: and then it says Section 103A of the bill provides the authority for such new or amended regulations. [00:20:35] Speaker 05: That would seem to suggest on the face of it that regulations can be issued to comply with international obligations. [00:20:44] Speaker 01: Well, I guess that I don't respectfully disagree with that interpretation. [00:20:49] Speaker 05: You don't disagree with that. [00:20:51] Speaker 01: So I don't agree with that interpretation. [00:20:54] Speaker 01: Congress has been very clear that WTO agreements are not self executing. [00:20:59] Speaker 01: So that means that whatever is in the WTO agreements, that doesn't matter if Congress didn't put it in... We have in best foods a similar provision which contemplates regulations to implement international obligations, right? [00:21:14] Speaker 01: Right. [00:21:15] Speaker 01: Well, I'm very glad you mentioned best foods. [00:21:18] Speaker 01: Best food does not apply here because in best food, like Judge Toronto mentioned, the issue was not whether the agency has authority. [00:21:26] Speaker 01: because the agency did have authority under the marking statute. [00:21:30] Speaker 01: The marking statute was broad in that it just says that any article of foreign origin needs to be clearly marked for the ultimate purchaser to indicate the country of origin for that product. [00:21:43] Speaker 01: Case law developed to define, the statute never defined what foreign origin or ultimate purchaser mean. [00:21:50] Speaker 01: Case law defines it to mean substantial transformation. [00:21:56] Speaker 01: Because of NAFTA, the agency developed a different definition for goods coming from NAFTA countries. [00:22:04] Speaker 01: And there, the Fed Circuit at this court held that that was okay because the agency already have authority to define the terms that Congress did not define. [00:22:14] Speaker 03: Here, there's no provision in... That change was much more than just mere definition. [00:22:21] Speaker 03: Under NAFTA, the country of origin, rules were based on [00:22:25] Speaker 03: changing tariff classification, whereas before it was something else. [00:22:29] Speaker 03: It was a substantial transformation. [00:22:31] Speaker 03: So we had a new system or a new rule adopted after NAFTA for the most extent with respect to the NAFTA contracting parties. [00:22:42] Speaker 01: That's true. [00:22:43] Speaker 01: But the marquee statute was broad enough. [00:22:45] Speaker 01: That's what the court found, that the marquee statute was broad enough to encompass these two different types of systems. [00:22:51] Speaker 01: And the agency had authority to issue regulation because that statute was broad. [00:22:56] Speaker 03: there were in place under statute laws with respect to countervailing duty matters. [00:23:05] Speaker 03: Correct? [00:23:06] Speaker 01: Sorry, can you say that again? [00:23:08] Speaker 03: Prior to the Uruguay Round Agreements Act, there were under US law, US trade statutes, statutory provisions and also regulations that applied to countervailing duty matters. [00:23:23] Speaker 01: Correct? [00:23:24] Speaker 01: Correct. [00:23:26] Speaker 01: So Congress had this process. [00:23:28] Speaker 01: The Canadian parties actually mentioned this argument for the first time in their reply brief. [00:23:32] Speaker 01: The Congress had a process that was similar to CVD-X by review, pre-URAA. [00:23:38] Speaker 01: And they said that that practice was also not provided in the statute. [00:23:43] Speaker 01: And it was a purely agency practice. [00:23:45] Speaker 01: But that, in fact, is not true. [00:23:47] Speaker 01: The Congress actually passed an amendment in 1984 [00:23:52] Speaker 06: Just to be clear, on the state of, as this case comes before us, there is no authority except with the possibility, which is what's at issue here, 103 for this regulation. [00:24:06] Speaker 06: There's no other authority. [00:24:07] Speaker 06: We take it on that assumption. [00:24:09] Speaker 02: Yes. [00:24:09] Speaker 06: OK. [00:24:11] Speaker 06: And 103B. [00:24:13] Speaker 06: at least as I read it, is not terribly helpful to the other side because the SA did not, in fact, propose this in the SA. [00:24:22] Speaker 06: What's left, I don't mean to diminish it, is 103A. [00:24:27] Speaker 06: And a facial problem for the other side with 103A is that what it says is that the government can adopt regulations necessary to ensure that any provision of the act [00:24:41] Speaker 06: or amendment to the act, not the agreement. [00:24:43] Speaker 06: So to get to where they want to get, they have to say, and I'm not being skeptical about this at the moment, there are actually other pieces of the act in 101 that say we're approving the treaty and we're approving the SAA. [00:25:00] Speaker 06: So I think the theory is Congress meant at least the provision that approved the SAA to include [00:25:09] Speaker 06: to be included in the 103A authority. [00:25:13] Speaker 06: And if that's what it comes down to, why is that wrong? [00:25:16] Speaker 01: Well, so the other side is trying to say, well, because they approved the SAA and because they approved the subsidy agreements, that means that it opens a door for commerce to interpret the international obligations however it wants. [00:25:30] Speaker 01: And that is not the case. [00:25:32] Speaker 06: Only consistent with what it said. [00:25:34] Speaker 06: I mean, it doesn't necessarily mean more than the SAA itself said. [00:25:41] Speaker 06: And what the SAA said, if I recall right, was even though it wasn't in the SAA saying it was proposing this regime, the SAA said, we think this regime is necessary under the agreement. [00:25:56] Speaker 01: So yes, that's also another point that the SAA did not say that Congress understood CBD-XY review as described by Congress's regulation. [00:26:08] Speaker 05: is part of the United States obligation under Article 19.3. [00:26:30] Speaker 01: The Congress has been clear that WTO agreements are not self-executing. [00:26:34] Speaker 01: If we're reading the essay saying, yes, Congress can go in and implement regulation as it interprets Article 19 of the international agreements, then that is essentially saying that WTO agreements can be self-executing because the agency can then just interpret the provision as the way they want it. [00:26:59] Speaker 05: The fact that you have to have a regulation is not the same as being self-executed. [00:27:07] Speaker 01: Well, that is true. [00:27:08] Speaker 01: But the Congress, the idea of issuing, implementing legislation, is Congress understanding that whatever they believe to be the United States obligation should be in US law. [00:27:22] Speaker 01: So if approving an international agreement. [00:27:26] Speaker 06: I'm sorry, but it seems to me it's narrower than that. [00:27:29] Speaker 06: because it would be a broader proposition if commerce had said here, we now, and we've never said this in the SAA, think that 19 point whatever requires something and we're going to adopt a regulation. [00:27:48] Speaker 06: We don't have that case. [00:27:49] Speaker 06: We have the case where [00:27:52] Speaker 06: with the regulation, Commerce said, we're going to have a regulation that implements something that in the SAA itself, which was approved by Congress, we said we think the agreement requires. [00:28:06] Speaker 06: Even though it wasn't proposing it. [00:28:08] Speaker 01: Right. [00:28:08] Speaker 01: So the SAA only mentions, SAA just repeats the language of Article 19.3. [00:28:14] Speaker 01: It doesn't say that it understands the CVD-XY review to be part of that obligation. [00:28:20] Speaker 01: Actually, it shows the opposite. [00:28:22] Speaker 01: The SAA shows that Congress says, we know that we have this obligation. [00:28:27] Speaker 01: We're going to change U.S. [00:28:28] Speaker 01: law to implement these obligations. [00:28:30] Speaker 01: And it goes on to list, you know, all the changes of the presumption from a country-wide rate to an individually examined rate. [00:28:38] Speaker 01: And that was it. [00:28:39] Speaker 01: There's nothing about the type of CBD expiry review process that Congress understood. [00:28:45] Speaker 03: Does it not extend to the administrative authority [00:28:50] Speaker 03: the authority to implement the Uruguay Round Agreements? [00:28:58] Speaker 02: No. [00:28:59] Speaker 03: Really? [00:29:00] Speaker 03: Well, who administers the URA? [00:29:07] Speaker 03: Who administers, for example, counter-railing duty cases? [00:29:12] Speaker 01: Well, Commerce administers countervailing duty cases, but the URAA encompass a lot of different agencies' jurisdictions. [00:29:20] Speaker 01: So it has, you know, there's Commerce, there's ITC. [00:29:23] Speaker 03: It's not reasonable to say that the Federal Trade Commission can exert authority under the SSA to implement a regulation affecting countervailing, subsidies and countervailing duty matters. [00:29:36] Speaker 03: That's not reasonable. [00:29:38] Speaker 03: The administrating authority under the SSA is the Department of Commerce. [00:29:44] Speaker 01: So if we're talking about who to interpret the statute... Who administers? [00:29:54] Speaker 03: Who administers the processes that were agreed to? [00:29:57] Speaker 03: And here, one of the processes agreed to is the Subsidies and Countervailing Duties Agreement. [00:30:03] Speaker 03: Sure. [00:30:04] Speaker 03: Right? [00:30:04] Speaker 03: Yes. [00:30:05] Speaker 03: And that agreement speaks about expedited reviews. [00:30:09] Speaker 01: That agreement speaks about, mentions the words expedited review, but there's no evidence that that particular, by mentioning those words, it means what Commerce believes. [00:30:20] Speaker 03: But Commerce has the authority under the agreement to implement the WTO agreements. [00:30:28] Speaker 01: Commerce has the authority to implement whatever that's in the implementing statute. [00:30:33] Speaker 01: Commerce does not have the ability to implement WTO agreements as it is written. [00:30:39] Speaker 01: The idea of the reason that Congress implemented the implementing legislation and the fact that it was thousands of pages, not just one provision that says we approve the SAA and we approve the WTO agreements is because Congress has to transform whatever Congress believes to be the United States obligations under these international agreements [00:31:02] Speaker 01: into implementing legislation. [00:31:04] Speaker 05: Well suppose you're wrong about that. [00:31:06] Speaker 05: Let's just suppose hypothetically that we think there is authority in Congress to issue regulations implementing the international obligations even if there isn't a specific statutory provision. [00:31:17] Speaker 05: Does 19.3 of the treaty in fact provide for individual examination and expedited review of that [00:31:32] Speaker 01: Well, I mean, I don't believe that's the case. [00:31:36] Speaker 01: What we say is different countries have different understanding of what Article 19.3 actually requires. [00:31:43] Speaker 01: Taiwan understand, for example, that Article 19.3 means new shipper review. [00:31:49] Speaker 05: And again, agencies are creatures of- We're not going to probably give much weight to Taiwanese interpretation of the tree. [00:32:01] Speaker 05: Where do we find a U.S. [00:32:03] Speaker 05: interpretation of 19.3 that supports your view? [00:32:08] Speaker 01: Well, so, in the statute, it says, in the statute, Congress did not implement anything in regards to the type of CVD XR review described by Commerce. [00:32:20] Speaker 01: In the SAA, Congress said, [00:32:22] Speaker 01: we know that there is the obligations under article 19.3 and here are things that we need we are going to do to change that and then none of that includes cvx by review even in the Senate report that the Canadian Canadian parties ignoring and you're doing it again that there's a third element here and that's the agreement itself the subsidies agreement [00:32:41] Speaker 01: Correct, but the subsidy agreement is not binding on this court and is not, correct, is not... Is not itself domestic law. [00:32:51] Speaker 01: Correct. [00:32:53] Speaker 01: So, I mean, I think it can be a theoretical exercise here to sort of debate out what Article 19.3 actually requires, but Article 19.3 is not U.S. [00:33:05] Speaker 01: law and has not been passed by Congress and has not been signed into law by the President. [00:33:10] Speaker 01: the implementation legislation has, and the implementing legislation has nothing, says nothing about the type of... Are we signatories to that agreement? [00:33:18] Speaker 01: We are signatories to that agreement, and of course Congress approved those agreements. [00:33:24] Speaker 03: And does the SSA reference the agreement? [00:33:26] Speaker 01: The SSA referenced that agreement, but again, the SAA is not an authorizing document in and of itself. [00:33:33] Speaker 06: Except that the SAA was approved [00:33:37] Speaker 06: by Congress, right? [00:33:38] Speaker 06: Correct. [00:33:38] Speaker 06: Is that 101-2 or something, A-2 or something? [00:33:42] Speaker 01: That's 101-A-2. [00:33:44] Speaker 01: A-2, right. [00:33:45] Speaker 01: But just by approving the SAA, Congress did not turn SAA into US law. [00:33:51] Speaker 01: SAA is not part of the US code. [00:33:53] Speaker 01: The implementing legislation is. [00:33:56] Speaker 01: And the implementing legislation does nothing about, and it does not have any ambiguous language about CVDX by review. [00:34:04] Speaker 01: So Congress, that's the United States interpretation of Article 19.3. [00:34:10] Speaker 01: Now the Canadian parties can disagree with that. [00:34:13] Speaker 03: Here's what 101 actually says. [00:34:17] Speaker 03: It's talking about the entire [00:34:20] Speaker 03: on the Bush Trade and Competitiveness Act of 1988. [00:34:23] Speaker 03: It goes on citing the Trade Act of 74, taking us back into the history of US trade law. [00:34:30] Speaker 03: It says, Congress approves, number two, the statement of administrative action proposed to implement the agreements that were submitted to Congress on September 27, 1994. [00:34:40] Speaker 03: Is that an approval of the Subsidies of Counter-Reel and Duty Agreement? [00:34:49] Speaker 01: That is the approval of subsidies and countervailing duty agreement, but the interpretation of that approval does not mean that it turns every single word of the essay of the subsidies agreement into U.S. [00:35:02] Speaker 03: law. [00:35:03] Speaker 03: But this case isn't about that. [00:35:05] Speaker 03: It's not about the entire agreement. [00:35:07] Speaker 03: It's about the statement that it has about expedited reviews. [00:35:12] Speaker 01: If the U.S. [00:35:16] Speaker 03: agreed to an expedited review process, then isn't it incumbent on commerce to implement regulations to bring us into line with that obligation? [00:35:29] Speaker 03: That's an international trade obligation that we committed to. [00:35:33] Speaker 01: We committed to what we believe to be the international obligation under Article 19.3, and Congress understood that to not include CBD expiry review. [00:35:43] Speaker 01: And other countries disagree about what Article 19.3 actually requires. [00:35:48] Speaker 01: And what we have shown here is that there's nowhere in the statute that says that Congress understood that CBD expiry review is part of the United States obligations. [00:36:01] Speaker 05: Unless there are further questions. [00:36:04] Speaker 05: Thank you. [00:36:05] Speaker 05: Thank you. [00:36:05] Speaker 04: Mr. Leonard, you have two minutes. [00:36:11] Speaker 04: Thank you, Your Honors. [00:36:12] Speaker 04: I'd like to point out the US interpretation can be found in litigation that occurred over expedited reviews in this super calendared paper case. [00:36:22] Speaker 04: This was before the Court of International Trade. [00:36:25] Speaker 04: It can be found in appendix 764 and page 15 of our reply brief. [00:36:31] Speaker 04: Um, and I'd also like to, uh, uh, uh, mention again regarding the action. [00:36:41] Speaker 06: Can I just ask what, um, cause this is like to me that the heart of this, I'm trying to understand what to make of 101 A2. [00:36:49] Speaker 06: 101 A2. [00:36:53] Speaker 06: Congress approves the statement of, I pause here for a reason, administrative action proposed [00:37:01] Speaker 06: to implement the agreements. [00:37:05] Speaker 06: Why should that not be limited to the specific proposals made in the statement of administrative action with respect to 19.3, which do not include, assume with me that the proposals do not include this expedited review. [00:37:25] Speaker 06: Only a recognition, a statement of recognition that 19.3 requires [00:37:32] Speaker 06: So if 102A2 is limited to only the proposals that are in the statement of administrative action, then why isn't the CIT right? [00:37:47] Speaker 04: There are two things. [00:37:48] Speaker 04: Number one is, I believe in section 101 when it talks about the SAA proposed, it's because it was part of the package under Fast Track given to Congress. [00:37:55] Speaker 06: It's required to have said exactly this under 2903. [00:37:59] Speaker 06: Yes. [00:38:00] Speaker 04: Yes, in 2191. [00:38:02] Speaker 04: Right. [00:38:03] Speaker 04: So the essay was proposed to Congress and Congress approves it. [00:38:06] Speaker 04: And then in 103B... I'm sorry. [00:38:09] Speaker 06: No, no. [00:38:09] Speaker 06: Congress did not approve the statement of administrative action as a document of a thousand pages with every sentence in it being approved. [00:38:21] Speaker 06: Maybe it did, but the alternative [00:38:22] Speaker 06: is reading this language quite literally. [00:38:26] Speaker 06: What we're approving is the statement of the actions proposed in that document, which do not include an expedited review regulation. [00:38:35] Speaker 04: and respectfully i disagree that that extra review regulations not proposed okay if the if you can stand on that and then you have a much weaker case and then i think that can make the main case that you're you're making their two bases in congress raised both of these uh... number one is under one of three b that the statement of administrative action but i know you're going to let us read and one of three a uh... to get one of three a [00:38:59] Speaker 04: is that the URA adopts the subsidies agreement and adopts the SAA and makes the SAA authoritative in terms of United States interpretation of the treaties in the act. [00:39:15] Speaker 04: So the authority that commerce has to issue the regulations comes not only from the listing of actions proposed in the SAA but also from the approval of the [00:39:29] Speaker 04: uh... agreements by congress and unknown uh... in best foods uh... answer what what does the approval of the agreement do for you that this other thing does not do the approval of the agreement uh... indicates congress' uh... consent or intent that the u.s. [00:39:47] Speaker 04: internationally enforceable that that the uh... u.s. [00:39:51] Speaker 04: obligations under the agreement be implemented into u.s. [00:39:53] Speaker 04: law whether by statute or by regulation [00:39:56] Speaker 06: But it doesn't, just to be clear, it's absolutely clear it does not make the agreement itself enforceable as domestic U.S. [00:40:09] Speaker 06: law. [00:40:09] Speaker 04: The agreement is not self-executing, and I don't think that that's controversial at all. [00:40:13] Speaker 06: It's only the implementation Congress made for any [00:40:18] Speaker 04: choices it made to implement that then become enforceable domestic by statute or via regulation and invested uh... the court said uh... we reject that best foods argument that the fact that congress amended thirteen oh u nineteen u s c thirteen oh four in one respect not pertinent here indicates that it did not intend to change a permit the secretary of the treasury to change the operation of the statute in other respects [00:40:42] Speaker 04: So this is similar where here we have in the actions proposed under B5, and it talks about company-specific rates and expedited reviews, and it talks about several changes that are required to implement those. [00:40:55] Speaker 04: The changes, the statutory changes, are the ones that are required to change from a country-wide rate to a company-specific rate. [00:41:04] Speaker 04: But just because there were no statutory changes required to implement expedited review regulations doesn't mean that Congress didn't intend the Secretary of Commerce to have those authorities. [00:41:17] Speaker 04: Unless there are further questions, I think we're out of time. [00:41:21] Speaker 04: Thank you. [00:41:21] Speaker 04: Thank you, Mr. Chairman. [00:41:23] Speaker 05: I thank all counsel cases submitted.